ACLU LINKS DEATHS TO USE OF "OC'
Monday, August 18, 1997
By CHRISTOPHER ANDERSON and JEFF MAYO
Camera Staff Writers
The death of a 20-year-old man who stopped breathing during a struggle with off-duty Boulder police officers two weeks ago remains unexplained.
Yet, as the community awaits the findings of a coroner's report identifying the cause of the young man's death, fingers are already pointing to two controversial techniques used by police agencies - pepper spray and the hogtie, or hobbling, where hands and feet are tied together behind the back.
Both techniques were used on Luis McIntire, a 5-foot-11-inch, 240-pound Colorado Springs man who security workers and off-duty Boulder police officers removed from an Aug. 3 "rave" party in Boulder. McIntire stopped breathing during the altercation and was later pronounced dead at Boulder Community hospital.
The city won't identify the officer who used pepper spray on McIntire. And because the role of pepper spray in McIntire's death has not been determined, the police department will continue to use it, City of Boulder spokeswoman Leslie Aaholm said.
But some police agencies have already banned the techniques. A mayor's task force in Berkeley, Calif., a college town similar to Boulder, will present its recommendation at a City Council meeting next month to ban pepper spray.
Custody deaths like McIntire's are why police need better training on the use of pepper spray and why the hogtie should be banned, said John Crew of the American Civil Liberties Union in Northern California.
Crew said obese people who may have been drinking or on drugs and are breathing hard from a struggle and then pinned to the ground with their weight compressed on their chest are already suffering from loss of respiration. To then use pepper spray, which attacks the respiratory system, is to run the risk of a fatality, Crew said.
At about 1 a.m. Aug. 3, private security guards escorted McIntire from the rave party - held at the Olympic Bowl, 1740 30th St after a female patron accused him of fondling her.
A police statement said McIntire became combative and, during a struggle near the front door, McIntire and about four security personnel fell on the concrete pavement.
Off-duty Boulder police officers hired for the party aided the security guards and tried to restrain McIntire by using pepper spray and placing him face down, pulling his legs behind his back, tying them to his handcuffed wrists.
When McIntire stopped breathing, ambulance and fire department personnel tried to resuscitate him. He was pronounced dead at Boulder Community Hospital at 1:55 a.m.
Police say pepper spray - which affects a person for 20 to 45 minutes - is useful in subduing someone who is acting violently because he or she is on drugs, has a mental disability or is large in size. But pepper spray opponents say these are the exact people most harmed by its use, creating a fundamental dilemma in police policy.
The general effects of pepper spray include immediate swelling and intense burning of the eyes and breathing passages, resulting in watering eyes, blurred vision, uncontrollable coughing, gagging, difficulty breathing and gasping for breath, according to a draft of the report by the Pepper Spray Task Force in Berkeley. It also increases heart rate and blood pressure.
There are more than 200 manufacturers of pepper spray, which is 600 times hotter than cayenne pepper, according to an article in Covert Action Quarterly, a government-watchdog magazine.
Pepper spray's chemical name is "oleoresin capsicum" or OC. It's a thick, dark reddish brown liquid concentrate of a capsicum pepper plant. Boulder police use a pepper spray with ingredients that include distilled water and other chemicals. The spray is propelled by nitrogen, coming out in a solid stream.
Defense Technology Corporation of America based in Casper, Wyo., manufactures the spray used in Boulder, which contains a much lower level of OC than other sprays, said Dave DuBay, director of research for the company.
It is recommended that the spray be used for no more than a half-second to one second burst on a direct hit into the eyes, DuBay said.
Currently, pepper spray has been banned in Australia and Great Britain as a toxic substance and it's considered an illegal chemical weapon under the United Nations Biological and Chemical Weapons Convention of 1972, according to the Guardian newspaper of London.
A 1995 American Civil Liberties Union report links 26 deaths to the use of pepper spray.
"Pepper spray, when used effectively, may be an appropriate method of subduing violent suspects," said the author of the report, Allan Parachini, in a June 1995 news release. "When used improperly and along with other dangerous types of police restraints, it is clear that fatal outcomes can result."
Boulder police recently requested a copy of the report and the Boulder coroner's office has asked for information from the manufacturer of Boulder's pepper spray.
No study has ever proven that pepper spray is lethal, said DuBay, who added that the deaths cited in the ACLU report could have been caused by other circumstances also cited in the report, such as bullet wounds. The FBI and some medical experts also say pepper spray cannot be blamed for fatalities.
"Without pepper spray, police tactics experts are quick to point out the dilemma with the L.A.P.D. and Rodney King - either beat him to submission with a baton or shoot him," said Peter Dodenhoff, editor of Law Enforcement News, a trade newspaper for police officials published by the John Jay College of Criminal Justice in New York.
But Dodenhoff agrees that the spray can be dangerous when used on people with medical conditions or along with hogtying.
"Pepper spray inflames mucus membranes and makes breathing agonizing," Dodenhoff said. "I can't imagine that it would be anything less than extraordinary to continue breathing after being hogtied."
The use of hogtying has been banned by the Los Angeles and New York City police departments and there is a definite trend shying away from it in all but the most extreme circumstances, Dodenhoff said.
"Hogtying lends itself far too readily to be more force than what is necessary," Dodenhoff said. "Chances are handcuffs will do the trick.
"Positional asphyxiation," or suffocation, can be triggered by a suspect who suffers from obesity, asthma, heart or respiratory problems being "trussed up like a Thanksgiving turkey," said Dodenhoff.
As an alternative to hogtying, Phoenix police use bean bag shots - nylon sacks filled with lead pellets fired from a shotgun - to knock a suspect down long enough for police to swarm and subdue the person, Dodenhoff said. He said he is unaware of anyone ever dying from a bean bag shot.
"I question whether hogtying was necessary," Dodenhoff said of the McIntire case. "Was there really a defensible need to hogtie this guy once (police) had him subdued with pepper spray? Why were handcuffs not sufficient?"
Even if police officers were using reasonable force in using the hogtie procedure, that is not to say that there is not room for policy reform and overhaul, Dodenhoff said.
Boulder police officers are trained in the use of pepper spray as part of a "confrontational continuum," which is based on a graduated response, using minimum force necessary to respond to a threat.
As methods fail, officers move up the continuum, which ranges from physical police presence at the least to lethal force at the most. Pepper spray is used after the use of physical force and before the use of a baton.
Off-duty Boulder police officers carry the same equipment as they would on a regular shift - gun, baton and pepper spray.
As for the family of McIntire, they are coping, said their attorney Randy Allen.
Losing a son is tough enough Randall said, "to lose one this way is a tragedy."
This page last updated 08 Jun 98
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